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Thursday, 21 July 2016

Can search engines be ordered to filter all results containing certain keywords or a combination of certain
keywords?

In a nutshell, this was the issue that the Tribunal de
Grande Instance de Paris (TGI) addressed in the context of litigation between SNEP[the French Syndicate of Phonographic Publishing]and Microsoft. In its decision
on 8 July 2016 [this
post has been written relying on the original French version of the judgment]
the TGI answered the question above in the negative.

Background

Claiming that through Microsoft’s search engine Bing users
could access infringing copies of phonograms or video recordings, SNEP sought
an injunction against Microsoft to implement filters on Bing (under all top
level domains) to prevent – for a period of 12 months – the display of results
containing in their domain name the word ‘torrent’ and provided when conducting
the following queries: Kendji
Girac/Shy’m/Christopher Willem[these being among
the most popular French artists of the moment]+ torrent.

According to SNEP, in fact, in relation to
these artists, among the first 20 results displayed further to a query of this
kind on bing.fr, the vast majority (70%) related to unlicensed sources.

SNEP’s action was based on Article
L336-2 of the French Intellectual Property Code (IPC), by which France
transposed Article 8(3) of the InfoSoc
Directive into its own national law. This provision of EU law mandates upon
Member States to “ensure that rightholders are in a position to apply for an
injunction against intermediaries whose services are used by a third party to
infringe a copyright or related right.”

Microsoft claimed that SNEP’s action should be dismissed on
grounds that – among other things -
SNEP, instead of seeking a filtering injunction of this kind, should have
first used Bing’s free reporting
and removal tool and requested to have relevant results (identified by means
of appropriate URLs) [for a different approach to the need for URLs, see here
and here]
de-indexed.

Kendji Girac: not much to celebrate this time

The decision

Injunctions are independent from a finding of intermediary liability

The TGI noted at the outset how injunctions pursuant to
Article L336-2 IPC/Article 8(3) InfoSoc Directive can be sought independently
from a finding of liability of the online intermediary at hand [this conclusion is
not surprising also in light of the Ecommerce
Directive and has been recently confirmed by Advocate General Szpunar at
para 83 of his Opinion in Mc
Fadden, on which see here].

No need for notice-and-takedown first

This said, the court rejected Microsoft’s argument that SNEP
should have first reverted to the submission of notice-and-takedown requests.
There is nothing in Article L336-2 ICP that suggests the contrary.

Yet, one cannot seek to de-index all ‘torrent’ queries

However, the TGI dismissed SNEP’s action, on grounds that
injunctions pursuant to Article L336-2 ICP can be granted in relation to
specific, identifiable contents, and the measures sought must be determined,
proportionate, efficient and specific in relation to each listed site. This was
not the case of SNEP’s request.

'torrent' is not just a copyright-related term though

According to the court, SNEP’s request was:

Indeterminate, in that it was not limited to the
existing phonograms of Kendji Girac, Shy’m, and Christopher Willem, but also
future works yet to be created and released;

General (as opposed to specific) in that it did
not concern an identified site, but rather all sites made available through
Bing in response to users’ queries for [artist’s name] + torrent;

Ineffective and not strictly necessary, since it
would obtain a limited result and it could be easily circumvented by users.

According to the TGI, ‘torrent’ is not necessarily
associated with infringing content [indeed, 'torrent' also mean "a strong and fast-moving stream of water or other liquid", although Urban Dictionary defines it as "The RIAA's worst Nightmare"], but is rather a neutral term referring to a
communication protocol developed by BitTorrent.

According to the TGI, the
measure sought by SNEP, ie de-indexing of queries for artists associated with ‘torrent’,
would amount to a general surveillance measure and could unduly cause the blocking of
legitimate sites.

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